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State v. Paradise

Supreme Court of Connecticut

January 2, 1990

STATE of Connecticut
Wilmer PARADISE, Jr.

Page 1222

Argued Nov. 8, 1989.

Page 1223

Martin Zeldis, Asst. Public Defender, with whom were Carmine Giuliano and, on the brief, G. Douglas Nash, Public Defender, for appellant (defendant).

Susann E. Gill, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and John Malone, Asst. State's Atty., for appellee (state).


[213 Conn. 389] GLASS, Associate Justice.

This case marks the third time that the state's proceedings against Wilmer Paradise, in relation to the 1974 murder of Jay Cunningham, have resulted in an appeal Before this court. As this court noted in the second appeal, State v. Ellis, 197 Conn. 436, 438-39, 497 A.2d 974 (1985), in May, 1974, the body of seventeen year old Jay Cunningham was found in a wooded area of Enfield. The chief medical examiner classified Cunningham's death as a homicide resulting from multiple stab wounds. More than seven years later, in December, 1981, Wilmer Paradise and Brian Ellis were arrested and charged with the crimes of murder, General Statutes § 53a-54a, felony murder, General Statutes § 53a-54c, and kidnapping, General Statutes § 53a-92(a)(2), in connection with Cunningham's death. One month after their arrest, the defendants moved to dismiss the charges, claiming that their prosecution was barred by General Statutes (Rev. to 1975) § 54-193, [1] which imposed a five year limitation [213 Conn. 390] on the prosecution of any crime for which "the punishment is or may be imprisonment in the Connecticut Correctional Institution, Somers." On March 29, 1982, the trial court granted the defendants' motions and the state appealed. This court found no error. State v. Paradise, 189 Conn. 346, 456 A.2d 305 (1983) (Paradise I ).

After the decision in Paradise I, the state, on April 11, 1983, rearrested Paradise and Ellis on charges of capital felony, General Statutes § 53a-54b(5). [2] Paradise and Ellis filed motions to dismiss, claiming, inter alia, that their prosecution was barred under the principles of res judicata. The trial court agreed and dismissed the indictments. The state appealed, and on September 10, 1985, this court held that the trial court had improperly applied the doctrine of res judicata and set aside the judgments of dismissal. State v. Ellis, supra, 197 Conn. at 478, 497 A.2d 974.

On October 25, 1985, Paradise waived a preliminary hearing to determine probable cause in return for the state's agreement not to seek the death penalty. He entered

Page 1224

a plea of not guilty and demanded a trial by jury. On June 8, 1987, the state filed a substitute information, again charging him with the crime of capital felony in violation of General Statutes § 53a-54b(5). The trial began on that date Before a jury of twelve, [213 Conn. 391] presided over by the Honorable Thomas H. Corrigan. On July 2, 1987, the jury found Paradise guilty as charged, and on September 3, 1987, he received a sentence of twenty-five years to life.

Paradise has now appealed to this court, arguing: (1) the dismissal of the charges initially brought against him on the grounds that they were barred by the statute of limitations renders his subsequent prosecution on a more severe charge for the same conduct violative of the due process clauses of the United States and Connecticut constitutions; [3] (2) a new trial is required as a result of the state's misrepresentations concerning its sentencing recommendation for an accomplice witness, Brian Ellis; (3) the trial court erred in prohibiting him from inquiring into charges of misconduct leveled against a physician who testified as to the cause of the victim's death; and (4) the trial court erred in failing to ascertain on the record whether he had made a knowing, voluntary and intelligent waiver of his right to testify on his own behalf. We find no error.

From the evidence revealed at trial the jury could reasonably have found the following facts. On the evening of May 14, 1974, the defendant, Ellis, and David Worthington were driving around in a van when the defendant suggested that they go looking for Jay Cunningham because Cunningham owed him between $6000 and $7000 as a result of a drug deal. The trio found Cunningham standing outside the Scitico Shopping Center in Enfield. The defendant told Ellis and Worthington that if Cunningham did not have his money that "we're going to rough him up." Ellis, who was driving, stopped the van, and the defendant and Worthington got out. The defendant asked Cunningham if he had the money. When Cunningham said "no," the defendant and Worthington grabbed him by his left arm and pushed him into the van.

[213 Conn. 392] At the defendant's direction, Ellis pulled the van onto a dirt road in Enfield, and came to a stop by a gravel bank. The defendant, Worthington and Cunningham got out of the van. Ellis stayed behind the wheel and watched as Worthington punched Cunningham in the face. Cunningham fell down and Worthington kicked him three times in his midsection. As Cunningham was struggling to get back to his feet, the defendant pulled a knife and stabbed him. Cunningham screamed and fell back down and the defendant stabbed him again. Ellis then exited the van and approached Cunningham. Both Ellis and Worthington wanted to leave quickly. The defendant, however, told them that if either left he would tell the police that that person had killed Cunningham. The defendant then gave the knife to Worthington and insisted that he stab Cunningham. Worthington complied. The defendant then handed the knife to Ellis and made a similar demand, and Ellis stabbed Cunningham in the right side. Cunningham's body was found on May 31, 1974, by a tobacco worker.


The defendant claims that the state's bringing the charge of capital felony against him, after the initial charges of murder, felony murder and kidnapping were dismissed on statute of limitations grounds, violated his due process rights under the United States and Connecticut constitutions. In particular, the defendant asserts that the state's bringing of the subsequent charge of capital felony constituted prosecutorial vindictiveness. We hold, however, that the defendant is precluded by the principles of res judicata, as enunciated in State v. Aillon, 189 Conn. 416, 456 A.2d 279 cert. denied, 464 U.S. 837, 104 S.Ct. 124, 78 L.Ed.2d 122 (1983), from bringing a prosecutorial vindictiveness claim in this appeal.

[213 Conn. 393]

Page 1225

The defendant in Aillon was charged with three murders. His first two trials on those charges had failed to result in the final judgment of either conviction or acquittal. Aillon claimed, for the second time, that a third trial would subject him to double jeopardy, in violation of the fifth amendment to the United States constitution. This court held, however, that the rejection, in State v. Aillon, 182 Conn. 124, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S.Ct. 883, 66 L.Ed.2d 817 (1981), of his first claim of double jeopardy, after the second trial, was res judicata with respect to his second double jeopardy claim. State v. Aillon, supra, 189 Conn. 416, 420-23, 456 A.2d 279. The court noted: "Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. Cromwell v. County of Sac, 94 U.S. 351, 352-53, 24 L.Ed. 195 (1876); 1 Restatement (Second), Judgments §§ 19, 25; James & Hazard, Civil Procedure (2d Ed.) § 11.3.... Whether two claims in a criminal case are the same for the purposes of res judicata should therefore be considered 'in a practical frame and viewed with an eye to all the circumstances of the proceedings.' " State v. Aillon, supra, 189 Conn. 416, 423-25, 456 A.2d 279.

Therefore, the principal question that the court in State v. Aillon, supra, 189 Conn. 416, 456 A.2d 279, had to resolve was whether the defendant's latter claim of double jeopardy was sufficiently similar to his earlier double jeopardy claim to warrant the court's giving preclusive effect to the prior judgment. The court noted (pp. 426-27, 456 A.2d 279): "The defendant's previous double jeopardy claim had as a factual basis the first trial judge's improper contact with a juror. From that basis, the [213 Conn. 394] defendant argued unsuccessfully that the first trial was the functional equivalent of a mistrial, and that two successive mistrials barred reprosecution. The present claim relies on precisely the same facts, sought to be supplemented with evidence purporting to show the judge's bad faith, to advance a legal argument only slightly different; i.e., that the judge's misconduct foreclosed the defendant's right to be judged by the first tribunal convened to judge him. This slight shift in evidentiary basis and substantive theory of law does not constitute a new claim. 1 Restatement (Second), Judgments § 25, comments b, d; accord Steele v. United States No. 2, 267 U.S. 505, 507, 45 S.Ct. 417 [], 69 L.Ed. 761 (1924). That identical grounds for relief may be supported by different factual allegations or different legal arguments or couched in different language renders those grounds no less identical. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068 [1077-78], 10 L.Ed.2d 148 (1963)." [4]

The court's analysis in Aillon is directly on point in the instant case with respect to Paradise's claim of prosecutorial vindictiveness. In Paradise's second appeal, State v. Ellis, supra, he raised the issue of whether the principles of res judicata barred the state's charging him with capital felony, after its initial charges of murder, felony murder and kidnapping were dismissed on statute of limitations grounds. This court held that the dismissal of the initial charges did not bar the state's subsequent prosecution of Paradise on a charge of capital felony. Thus, the principal question in this case is whether Paradise's present claim of prosecutorial vindictiveness is sufficiently similar to his [213 Conn. 395] earlier claim of res judicata to warrant this court's giving preclusive effect to the judgment in Ellis. We conclude that it is. Just as the defendant in Aillon raised two double jeopardy claims emanating from precisely the same facts, Paradise raises two due process claims stemming from precisely the same facts.

Page 1226

Although the doctrine of res judicata itself is not of constitutional dimensions; see, e.g., United States v. Oppenheimer, 242 U.S. 85, 87-88, 37 S.Ct. 68, 69-70, 61 L.Ed. 161 (1916); Ellis is a due process case. As this court noted in Ellis: "Where the double jeopardy clause is inapplicable, due process protects against vindictive or coercive use of the power to prosecute. See United States v. Goodwin, 457 U.S. 368, 372 [2488], 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); Blackledge v. Perry, 417 U.S. 21, 28-29, 94 S.Ct. 2098 [2102-03], 40 L.Ed.2d 628 (1974)." State v. Ellis, supra, at 478, 497 A.2d 974. In simple terms, the issue in Ellis was whether the state could bring a subsequent prosecution that was based on the same evidence and conduct as the previous prosecution. [5] Thus, the underpinning of Ellis is clearly one of due process. [6]

Both the claim asserted by Paradise in Ellis and the claim asserted by him in the present case therefore, are ones of due process. Since both claims arise from the same factual and evidentiary foundation, the state's decision to bring a subsequent charge of capital felony against Paradise, we hold that Paradise's first due process[213 Conn. 396] claim in Ellis is res ...

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